Wednesday, 28 December 2016

On Boxing Day, the pro-Leave
group ‘Change Britain’ produced a ‘report’ (actually a press
release with an annex) claiming £24 billion worth of benefits from a ‘hard
Brexit’ – leaving the EU without participating in the single market or customs
union. This claim was widely repeated uncritically by the press – although a later
critique of the economics by Jonathan
Portes was published, and the economic analysis in the report was also
fisked by Sam
Bowman.

Their comments cover a lot of
ground, but it’s worth standing back and looking at the report as a whole – and
at how poor the debate over Brexit has become.

The report produces its £24
billion sum from three sources: a) no further contribution from the EU budget;
b) future trade deals; and c) cutting back ‘red tape’. Let’s look at each of
these in turn, and then note what the report neglected to mention.

EU budget contributions

The report starts with the UK’s
contribution to the EU budget: £19 billion if the UK budget rebate is not
counted; £14 billion if the rebate is taken off; and £10 billion if the amount spent
from the EU budget in the UK (on things like farm subsidies, research and
regional development) is deducted. Change Britain accepts that the possible
savings are £10-14 billion.

So this necessarily admits that
the £19 billion figure – which was the basis for the £350 million/week number ‘on
the side of the bus’ during the referendum – was a lie all along. It was a lie
because as I point out here,
with further details and links, the rebate money is never ‘sent’ to the EU, and
the UK has full control over how that rebate money is spent and whether the
rebate is retained in future.

Starting by admitting (albeit
only indirectly) that they previously told a huge lie is not a good beginning
for the report’s authors, since it puts the credibility of anything else they
say in question. But let’s give them the benefit of the doubt and examine their
other claims separately.

Cutting back ‘red tape’

The report estimates possibly several
billion pounds savings from scrapping some EU laws – concerning the issues of
air pollution, animal welfare, data protection, GM foods, chemicals regulation,
air passenger compensation, battery pollution and company law. These estimates should
have been accompanied by numerous health warnings.

First, as Portes points out,
these estimates (and the trade estimates), taken with the estimates on contribution
savings, mix up several different things: public finances and business costs.
Adding the numbers together is economically incoherent.

Secondly, most or all of the ‘red
tape’ referred to has a non-economic
value: many people prefer cleaner air, more privacy and better treatment of
animals, for instance, quite apart from the impact on GDP. There may, in any
event, be indirect economic costs from pollution and less secure data, among
others.

Thirdly, in some cases there may
be savings to business but not the
overall economy. Take air passenger
compensation: if passengers are not compensated for delayed flights, the
airlines save money – but passengers no longer have that compensation money to
spend. True, airlines might pass their savings on to passengers in general –
but still the passengers who previously received the compensation money will no
longer be getting it. Either way, how would the overall economy benefit? The
same goes for cuts to workers’ holiday pay and other worker benefits that business
groups sometimes campaign for (though not on this occasion): cuts will save
businesses money, but how will the corresponding cuts in workers’ spending
power make the economy as a whole better off?

Fourthly, some of the laws
concerned are related to market access to the EU – most obviously, the biggest proposed
saving, data protection law. As I discuss here,
EU data protection law limits data transfers from non-EU countries without an ‘adequate’
level of data protection. Scrapping that law (which would be complicated anyway
by the right to privacy in the ECHR and the separate Council of Europe data
protection Convention) would mean limits on market access to the EU. This would surely have an impact on the economy.

Future trade deals

The report claims that the UK
would generate exports to non-EU countries by signing its own trade deals. It
calculates these increased exports by taking EU estimates of the trade effect
of new deals with certain countries and assuming that the UK would benefit from
15% of that increase, because the UK has 15% of the EU’s trade with non-EU
countries. As Bowman points out, this is nonsense: the percentage of EU trade with
non-EU countries which is held by the UK varies widely and depends on many
factors.

Moreover, country where the
biggest possible trade benefit exists in the ‘asked for a trade deal’ list – Korea
– already
has a trade deal with the EU, under which UK trade has already
increased. (The EU document which the Change Britain report
links to even refers to the EU/Korea deal as being in force already. Change
Britain either a) did not read this document – which it uses as a key source –
and is moreover ignorant of the EU/Korea deal generally; or b) it is simply telling
a blatant lie.)

So while it’s theoretically
possible that the UK could sign a better trade deal with Korea than the EU did,
the benefit of that deal would not be anything like the £25 billion claimed. Certainly,
the report provides no evidence of this. Indeed, the UK will be worse off re exports to Korea after
Brexit unless it convinces Korea to agree to a UK-only version of the existing
deal.

Moreover, several other countries
referred to in the report have agreed a trade deal with the EU which is not in
force yet: Canada
and two ASEAN
states (Vietnam and Singapore). Others are negotiating with the EU (USA,
India,
Japan,
Mercosur,
several other ASEAN states). The report’s estimates could therefore only be
valid if (a) the EU trade deals agreed or under negotiation are respectively either
not ratified or not agreed; and (b)
the UK is able to negotiate trade deals with those states.

Note that trade deals are not
that easy to negotiate or ratify: the US has also had trouble doing a trade
deal with the Mercosur states in South America, and the Change Britain report itself
notes that the trans-Pacific trade deal might not be ratified. The report also
fails to refer to the obvious increase in imports from the countries concerned
that would follow from such trade deals. Finally, it one reason there is no
EU/India trade deal is a dispute
between the UK and India during the talks. Obviously Brexit will not solve that
problem.

In any event, if the UK stayed in the single market but fully left the customs union (like Norway), it could still sign its own trade deals with non-EU countries.

Costs of leaving

The report says nothing about
costs of leaving the single market – estimated at 4% of GDP by the IFS, for
instance. Maybe those forecasts are incorrect, but the Change Britain report doesn’t
even acknowledge their existence, never mind try to rebut them. In practical
terms, for instance, how much will it cost to hire extra customs officers after
leaving the customs union, or extra border guards and other immigration staff
after ending free movement of people? In Change Britain’s fantasy world, these
people must be invisible, or work for free.

Conclusion

An interesting coda to the Change
Britain report: late last night, Michael Gove, the head of the official Leave campaign, went on Twitter to debate with
Jonathan Portes about it. Portes repeatedly
asked Gove to confirm if he had read the report, and Gove repeatedly
avoided answering. Instead he demanded Portes first tell him how he voted in
the referendum. How is that relevant to a debate over the issues?

And how can Gove assert simultaneously
that he is certain Brexit will be economically beneficial and sneer that he is
tired of ‘expert’ economic forecasting? The Change Britain report – or any
other economic assessment of Brexit – necessarily involves making some hypothetical
assumptions. The alleged ‘savings’ from red tape reduction and new trade deals
both rely on such assumptions. So Gove is in effect taking the effect of Brexit
on faith, assuming without evidence (since he won’t debate the issue in detail)
that the ‘experts’ he agrees with must be right about the future, and the ‘experts’
he disagrees with are wrong about it.
That’s not an argument against experts; it’s just confirmation bias. To be
fair, though, the number on the side of the bus wasn’t confirmation bias. Rather,
it was a lie.

Scribbled without numeracy by incompetent
interns; published without scrutiny by hungover journalists; cheered without
irony by back-stabbing politicians. Six months after the referendum vote, the
debate over Brexit deserves better than this report. We can only cross our fingers for 2017.

On Wednesday 21
Dec 2016 the Court of Justice rendered its appeals
decision in the case C-104/16 P Council
v. Front Polisario. This was a Grand Chamber judgment under the expedited
procedure which overturned the decision
by the EU General Court in T-512/12 Front
Polisario v Council decided a little over a year ago.

Background

The Front
Polisario (Frente Popular de Liberación de Saguía el Hamra y Río de Oro) aims
to end Moroccan presence in the Western Sahara territory and has been
recognised internationally by over 40 countries with Algeria being regarded as
its main backer. It had a difficult year (see here and here) after its leader
died and Morocco, after a thirty-year absence from the African Union, applied
to re-join (a vote will be held in January 2017). While Polisario did not win
this case, the judgment will hardly be welcomed by Morocco either.

General Court judgment

As discussed by Geraldo
Vidigal in EJILTalk, the
decision by the General Court had been seen as an extraordinary victory by the
Polisario as it was granted standing to bring a case against the Council
decision concerning reciprocal liberalisation of certain agricultural products between
the EU and Morocco (Liberalisation Agreement). The General Court recognised,
contrary to objections by the Council and Commission, that Polisario had legal
personality and could prove direct and individual concern (the standing
requirement to challenge a decision in the EU courts, unless the challenger is
an EU institution or Member State).

Polisario was
concerned because the agreement, despite differing interpretations of its
territorial scope between Morocco and the EU, was applied to Western Sahara. Polisario
in particular argued that 140 undertakings based in Western Sahara were
included in the EU Commission’s website list of approved Moroccan exporters, and
both the Council and Commission had indicated at the oral hearing that the
contested decision was de facto applied to the territory of Western Sahara
(para 87). The General Court cited the C-386/08 Brita
judgment by the CJEU extensively because in that judgment the Court had
rejected products produced in the West Bank as being covered by the EU/Israel
trade agreement, but did not rely on this judgement because neither the EU nor
any of its Member States had ever recognised Polisario as representing Western
Sahara as a sovereign state. However, the General Court confirmed direct and
individual concern for Polisario to sue because the EU institutions by not
including a clause excluding the Western Sahara territory from the application
of the EU-Morocco Association Agreement had ‘at least implicitly’ accepted the
interpretation of the Association Agreement which applied it to the part of
Western Sahara controlled by Morocco (para 102).

On the
substance, the General Court rejected all of Polisario’s substantive claims bar
one. It agreed with Polisario that the Council had overstepped its wide margin
of discretion in international relations by not ensuring that the exploitation
of natural resources of Western Sahara under Moroccan control is beneficial to
the population of that territory and thus does not violate the population’s
fundamental rights. It said the “Council must examine, carefully and
impartially, all the relevant facts in order to ensure that the production of
goods for export is not conducted to the detriment of the population of the
territory concerned, or entails infringements of fundamental rights, including,
in particular, the rights to human dignity, to life and to the integrity of the
person (Articles 1 to 3 of the Charter of Fundamental Rights), the prohibition
of slavery and forced labour (Article 5 of the Charter of Fundamental Rights),
the freedom to choose an occupation and right to engage in work (Article 15 of
the Charter of Fundamental Rights), the freedom to conduct a business (Article
16 of the Charter of Fundamental Rights), the right to property (Article 17 of
the Charter of Fundamental Rights), the right to fair and just working
conditions and the prohibition of child labour and protection of young people
at work (Articles 31 and 32 of the Charter of Fundamental Rights)” (para 228).

By leaving the question solely to the Moroccan authorities, the Council failed
to fulfill its obligation to examine all elements of the case. As a consequence
the General Court annulled the Council decision. Several international
commentators hailed the decision as beneficial for the international protection
of human rights. Eyal Benvenisti strongly
welcomed the decision because it highlighted that even indirect
contributions to human rights violations through trade could violate
international law.

ECJ judgment

In this week’s
appeal judgment, the ECJ Grand Chamber saw things differently. It largely followed,
though in much fewer words, the Opinion
of Advocate General Wathelet who on 13 September 2016 had concluded that the
Court should set aside the General Court decision and dismiss the action by Polisario
as inadmissible. He also expressed the opinion that the General Court erred in
law when it applied the EU Charter of Fundamental Rights to the population of
the Western Sahara (para. 272), although he did accept that international human
rights law generally could apply to the EU’s decision.

The Council,
supported by the Commission, alleged six errors of law of which the Grand
Chamber only examined one in detail. It focussed on the standing of Polisario
and the question whether the Liberalisation Agreement applied to Western
Sahara. The Court of Justice did not see the finding that the Liberalisation Agreement
applied to that territory as a finding of fact, but rather a legal
interpretation by the General Court. The Court of Justice concluded that the
General Court went too far when it ruled that the absence of an application
clause in the Association Agreement meant that the EU had accepted the view by
the Moroccan authorities which see Western Sahara as an integral part of the
Kingdom of Morocco.

The Court of
Justice then proceeded to analyse: a) the principle of self-determination; b) Article
29 of the Vienna Convention on the Law of Treaties, on treaties' territorial scope (“Unless a different
intention appears from the treaty or is otherwise established, a treaty is
binding upon each party in respect of its entire territory.”); and c) the
relative effect of treaties. The Court of Justice concluded that given the erga omnes nature of the right to
self-determination by the peoples of a Non-Self-Governing Territory and its
status as an essential principle of international law, the General Court erred
in law when assuming that the Association Agreement also applied to Western
Sahara.

With regards to Article 29 of the Vienna Convention the Court of
Justice clarifies that ‘its entire territory’ only refers to the territory
internationally recognised, and not the territory under its jurisdiction which
would be the wider expression. As such, the Court sided with the Commission
which argued that any extension of the application must be expressed in the
agreement. Finally the Court of Justice also invoked the pacta tertiis principle by which “treaties do not impose obligations,
or confer any rights, on third States without their consent” (para 100). It
concluded that the people of Western Sahara according to the ICJ
Advisory Opinion on Western Sahara constituted a third party in this
respect and had not expressed their consent. In the view of the Court, the
Liberalisation Agreement as a subsequent agreement is incapable of expanding
the scope of the previous Association Agreement. This interpretation can also
not be altered by the rule on subsequent practice in Art. 31 Vienna Convention.
Though the Commission and the Council were aware that the Moroccan authorities had
been applying the Association Agreement to Western Sahara for many years and the
institutions never opposed such application and though certain tariff preferences
de facto applied to product originating in Western Sahara, this did not
constitute clear subsequent practice. As such, the agreements did not apply to
Western Sahara and therefor Polisario lacked standing in the European
Courts.

Comment

This judgment contributes
to the practice of international law, like many domestic courts would, in that
it clarifies the rules of interpretation in the Vienna Convention on the Law of
Treaties. It clarified how the territorial scope of the international
agreements of the EU cannot be interpreted without reference to general public
international law. The fact that the EU and Morocco ‘agree to disagree’ about
the application of the Association and Liberalisation Agreements (AG Opinion
para 67), could not alter the fact that in the EU’s view said agreements only
applied to the territory of Morocco as internationally recognised.

Overall the
Court’s judgement highlights that its practice is becoming more sophisticated,
carefully evaluating the international legal arguments and not just accepting
the Commission’s or Council’s view on the matter. In many ways this highlights
that EU External Relations law has a greater body of international case law to
rely upon. The impact on EU-Morocco relations as highlighted by Geraldo Vidigal
might become a bit trickier. While the Council tried to side with Morocco by
highlighting that despite the restrictive scope of the Association Agreement it
could be seen as “application without recognition” (AG Opinion para 67), the
Court very clearly asserted that the application of the Association Agreement
to Western Sahara required an explicit treaty provision. This might make future
relations between these two important partners more difficult. So, in some ways
this judgment constitutes a bit of a pyrrhic victory for Morocco.

It remains to be
seen if Polisario might bring a new case trying to challenge the de facto
application of the agreements to the territory also administered by Morocco. (Note
that another
case on these issues is already pending before the ECJ, following a
reference by a UK court, discussed further on the UK
Human Rights Blog). Unfortunately,
the Court of Justice did not venture, beyond self-determination, further into
the territory of human rights application to trade agreements. As Thomas Cottier
wrote in
2002, this will remain an important field to be discovered.

Wednesday, 21 December 2016

What is the scope of the EU’s
powers over trade agreements? The issue has been disputed for decades in the
case law of the ECJ, for it has a significant impact on the allocation of
powers between the EU and its Member States as regards external economic policies.
A number of Treaty amendments over the years – in particular the Treaty of
Lisbon – have amended the rules.

The issue has gained added
salience given the controversies surrounding some EU trade negotiations (in
particular with Canada and the USA), and the trade talks between the UK and EU
in light of Brexit. Today’s opinion
of an ECJ Advocate-General is not binding, but is very thorough and will likely
have a significant impact on the Court’s final judgment, expected in the
spring.

This post will summarise the
lengthy opinion succinctly and suggest its likely implications for the FTAs
with Canada, the USA and the UK in particular. For further reading, see the
earlier posts on this blog on the background
to the Opinion and on the hearing
before the ECJ.

Background

The Court has been asked to rule
on whether the various provisions of the EU’s draft trade deal with Singapore fall
within the scope of the EU’s exclusive powers, or whether powers are shared
with the Member States, or whether only Member States can conclude them. If the
EU only can conclude them, there can be no national ratification and also
probably (depending on the exact content of the agreement) the EU will approve
the deal by qualified majority, ie Member States will not have a veto.

If both the EU and its Member
States can conclude the provisions, the agreement is ‘mixed’, but the EU has a
choice to conclude the agreement without the Member States, if a qualified
majority (assuming, again, that no veto applies due to the subject matter)
agree to this.

If an issue is within exclusive
Member State competence, then Member States must be parties to the treaty in
order to conclude it. National ratification, and a de facto national veto for each Member State, therefore applies.

When is a power exclusive to the
EU? Article 3(1) of the Treaty on the Functioning of the European Union (TFEU)
lists a number of powers that are inherently exclusive, including the common
commercial (ie trade) policy (CCP) and fisheries conservation. The CCP is
further defined in Article
207 TFEU: it particularly applies to ‘goods and services’, the commercial
aspects of intellectual property’ and ‘foreign direct investment.’ The EU/Singapore
case concerns the interpretation of each of these aspects.

Besides Article 3(1), Article
3(2) TFEU goes on to provide that exclusive EU powers over an international
treaty can also derive from the exercise of EU internal powers, in three cases:
(a) ‘its conclusion is provided for in a legislative act of the Union’ or (b)
it ‘is necessary to enable the Union to exercise its internal competence’, or (c)
‘in so far as its conclusion may affect common rules or alter their scope.’ The
EU/Singapore case concerns the interpretation of both (a) and (c), which I will
refer to as the ‘legislative authorisation’ ground and the ‘affect common rules’
ground. (Note that ground (b) is rarely
applied, as the ECJ case law interprets it very narrowly).

Summary of the opinion

The Commission argues that the EU
has exclusive competence to conclude the deal. It’s supported by the European
Parliament, which will have the power to consent to the deal as long as part of
it relates to the CCP, or indeed to most other EU powers. Member States argue
for mixed competence of much of the agreement, and exclusive national
competence for some parts of it.

In general, the Advocate-General
argues that much of the agreement is solely within the EU’s exclusive powers,
mostly (but not entirely) as part of the CCP. A significant part falls within
the EU’s mixed competence, while a small part is purely national competence.

First of all, she makes some
general points about the scope of the CCP. She restates prior ECJ case law: the
CCP applies to a measure which regulates and has direct effect on trade; mere implications for trade are not
sufficient. She also interprets the exceptions in Article 207(6) TFEU, which
states that the CCP ‘shall not affect the delimitation of competences between
the Union and the Member States, and shall not lead to harmonisation of
legislative or regulatory provisions of the Member States in so far as the
Treaties exclude such harmonisation.’ In her view, this clause must be narrowly
interpreted and has limited effect: for instance, it does not restrict the EU
from agreeing measures on trade in culture and health services, as long as it does
not harmonise the laws on those issues within the EU.

The opinion does not address the
potentially important exceptions in Article 207(4) TFEU, which call for
unanimous voting where ‘unanimity is required for the adoption of internal
rules’ or ‘(a) in the field of trade in cultural and audiovisual services,
where these agreements risk prejudicing the Union's cultural and linguistic
diversity’, or ‘(b) in the field of trade in social, education and health
services, where these agreements risk seriously disturbing the national
organisation of such services and prejudicing the responsibility of Member
States to deliver them.’

On the other hand, the opinion
does discuss the exception in Article 207(5) TFEU, which states that the CCP
does not apply to agreements concerning transport. As a general rule, the
Advocate-General argues that this exception applies whenever a treaty has rules
‘specifically concerning transport’. The further implications of this are
discussed below.

The Opinion then examines the
specific provisions of the EU/Singapore deal. First of all, the opening provisions of the FTA,
referring to the creation of a free trade area, fall within the scope of the
CCP. Next, following pre-Lisbon case law, the Opinion concludes that the FTA
provisions on trade in goods are
also within the scope of the CCP (Paras 144-155).

Thirdly, the Opinion examines the
FTA provisions on services,
establishment and e-commerce (paras 195-269). In general, other than transport
issues, these fall within the scope of the CCP powers over services. In
particular, immigration of service providers falls within the scope of the
services powers, and therefore not under the immigration powers of the EU,
where the UK and some other Member States have an opt-out (para 203). Financial
services are covered by the CCP (para 204), since its scope is not dependent on
prior harmonisation of the relevant law by the EU (unlike Article 3(2) TFEU). Professional
qualifications are also covered (para 205).

As for the transport exception from the CCP, it applies not just to the
services themselves, but those indissolubly linked to those services – ie cargo
handling, transport repair, and computer reservation – but not to customs
clearance, since that applies also to trade in goods. But does the EU have exclusive power over the
transport issues, by applying Article 3(2) TFEU instead? As regards aircraft
repair, the ‘legislative authorisation’ ground doesn’t apply, since the EU
legislation creating an aircraft safety agency doesn’t address this issue in
detail. As for the ‘affect common rules’ ground, there is insufficient internal
harmonisation as maritime transport, air transport (other than computer
reservation systems), and inland waterways – but sufficient internal harmonisation
as regards road and rail transport for the powers to become exclusive as
regards the EU/Singapore FTA. Other aspects of transport remain a shared
competence.

Fourthly, on the issue of investment (paras 305-398), the opinion
again examines both the CCP and Article 3(2) TFEU. The opinion offers a definition
of the EU’s CCP powers over foreign direct investment: investments ‘which serve
to establish or maintain lasting and direct links, in the form of effective
participation in the company’s management and control, between the person
providing the investment and the company to which that investment is made
available in order to carry out an economic activity. In applying that
definition, I consider that the fact that the direct investor owns at least 10%
of the voting power of the direct investment enterprise may offer evidentiary
guidance but is certainly not determinative’. Crucially, the opinion argues (paras
324-342) that the CCP power covers the issue of investor protection.

As for other forms of investment –
referred to as ‘portfolio investment’, it was agreed that the CCP didn’t apply.
Could Article 3(2) TFEU apply, though? Here, there was no legislation on the
issue, but there are EU Treaty
provisions on capital movements to non-EU countries, which the Commission
believes fall within the scope of the ‘affect common rules’ ground. However,
the Opinion argues in principle that this ground for exclusive competence can
only apply where the prior EU harmonisation results from legislation, not the
Treaty. But the EU and its Member States still shared competence on most investment
issues, except for the termination of bilateral investment treaties.

Fifth, on the issue of government procurement, previous prior case
law said that the CCP only applied to procurement relating to goods and limited
aspects of services. The Opinion concludes that in light of the Lisbon Treaty
provisions made to the scope of the CCP, that EU power now fully applies to
government procurement issues – other than those within the scope of the transport
exception (paras 401-408).

Sixth, the Opinion examines the
scope of the CCP power relating to intellectual
property (paras 424-456). Although prior case law had concluded that the
CCP fully applied to the ‘TRIPS’ (ie the intellectual property deal forming
part of the World Trade Organisation system), the Opinion argues that this
ruling did not necessarily apply by analogy to intellectual property rules in
the EU’s FTAs (IP rules found in FTAs are often called ‘TRIPS+’ clauses).

To determine if a TRIPS+ clause
falls within the scope of the CCP, the test (para 435) is not based on the remedy
which applies, but rather whether: the substantive obligation governs trade
rather than harmonises IP law; there is a direct and immediate effect on trade;
and if the measure aims to avoid distortions to trade caused by monopolies. Again,
application of the CCP does not depend on whether the EU has harmonised an IP
issue internally. The Opinion also argues that rules on court procedures do not
necessarily fall outside the scope of the CCP.

Appling this test to the facts:
enforcement and plant variety rights are part of the CCP, but some parts of the
draft EU/Singapore are not: namely moral rights, which also are not covered by Article
3(2) because the EU has not harmonised them internally. But the EU does have shared
competence over this issue, since it could harmonise them on the basis of its internal
market powers.

Seventh, the Opinion looks at competition law (paras 459-466). The
FTA rules on this issue fall within the scope of the CCP, since they extend EU
rules to Singapore and there is a a strong link with trade in goods and
services.

Eighth, the Opinion looks at the FTA
provisions on environment and
sustainable development (from para 478). Here the rules on renewable energy
fall within the scope of the CCP, since there is a strong link to trade and
investment. However, the rules on labour and environmental standards are not
closely linked with trade, so the EU shares competence with its Member States
(no one had made an argument that Article 3(2) applied). The rules on fish stocks
fell within the scope of another EU exclusive competence: fisheries
conservation.

Finally, the rules on transparency and judicial review were
ancillary to the substantive provisions of the FTA (paras 508-13). So were the
rules on dispute settlement and
mediation (paras 523-44); here the Opinion points out that the
controversial rules on investor-state
dispute settlement were not at issue in this case (para 536). (Note that Belgium
has promised to ask the Court about the relevant provisions in the EU/Canada
FTA). And the final provisions are either accessory or minor, so change none of
the legal assessment (paras 548-553).

Comments

The Advocate-General’s analysis as
regards goods, services and intellectual property is unsurprising in light of
prior case law. However, the analysis as regards the fresh issue of investment
is more disputable. Her case that investor protection falls within the scope of
the CCP is convincing, on the grounds that people might not invest in the first
place without adequate protection (ie, there is a link back to market access). On
the other hand, the analysis relating to portfolio investment puts form over
substance: why should it matter that ‘common rules’ derive from the Treaties,
rather than EU legislation? Also, the termination of bilateral investment
treaties should more logically be seen as the corollary of the exercise of the
EU’s other (exclusive or shared) competence, rather than a purely national
competence. And it is unfortunate that the Commission missed this opportunity
to ask the Court to rule already on the controversial investor-state dispute
settlement rules.

What are the implications for
other FTAs, and for Brexit? That depends in part on the exact commitments in
those other treaties, since this Opinion analyses the commitments that would be
made under the EU/Singapore FTA, and commitments under other treaties might
differ. In particular, it’s conceivable that other FTAs might arguably require
unanimity on the basis of Article 207(4) TFEU, discussed above, which was not
at issue in this case.

In general, for other FTAs it
seems likely that a mixed agreement may
be necessary, in light of the interpretation here relating to the transport
exception, portfolio investment, and labour and environmental standards. Apart
from the question of termination of investment treaties, then, it will be a
purely political question whether Member States are content to agree those trade
treaties on behalf of the EU alone, or will continue to insist (as they
traditionally have done) on Member States being parties as well.

As for a post-Brexit FTA in
particular, different issues may arise. The UK and the EU might not have any
interest in negotiating measures relating to investment or intellectual
property, at least in the form that EU FTAs now address them. So if the UK and
EU want to focus on goods and services only, then the EU’s exclusive CCP
competence would apply except as regards transport – and the EU often signs separate
transport agreements with non-Member States. It could be argued that a deal might need unanimity
on the basis of Article 207(4) TFEU, but the counter-argument is that a post-Brexit
trade deal would simply be preserving (some of?) the existing UK market access
into the EU, so could not threaten health or audiovisual services.

Even on transport issues, or as
regards labour and environmental standards, case law suggests that exclusive
competence on the basis of Article 3(2) applies where the EU seeks to extend
its own laws to non-EU states. If the UK is willing to sign up to a treaty that
preserves market access in return for compliance with EU rules, it would follow
that today’s opinion – if followed by the ECJ – has possibly drawn a road map
for the negotiation of an agreement based on free trade in goods and services
and compliance with selected EU legislation which could avoid national
ratification and (depending on the subject matter) national vetoes.

Today's judgment in these important cases concerns the
acceptability from a human rights perspective of national data retention
legislation maintained even after the striking down of the Data Retention
Directive in Digital
Rights Ireland (Case C-293/12 and 594/12) (“DRI”) for being a disproportionate
interference with the rights contained in Articles 7 and 8 EU Charter of
Fundamental Rights (EUCFR). While
situated in the context of the Privacy and Electronic Communications Directive
(Directive
2002/58), the judgment sets down principles regarding the interpretation of
Articles 7 and 8 EUCFR which will be applicable generally within the scope of
EU law. It also has possible implications for the UK’s post-Brexit relationship
with the EU.

Background and Facts

The Privacy and Electronic
Communications Directive requires the confidentiality of communications,
including the data about communications to be ensured through national law. As
an exception it permits, under Article 15, Member States to take measures for
certain public interest objectives such as the fight against terrorism and
crime, which include requiring public electronic communications service
providers to retain data about communications activity. Member States took very
different approaches, which led to the enactment of the Data Retention
Directive (Directive
2006/24) within the space for Member State action envisaged by Article
15. With that directive struck down,
Article 15 remained the governing provision for exceptions to communications
confidentiality within the field harmonised by the Privacy and Electronic
Communications Directive. This left
questions as to what action in respect of requiring the retention of data could
be permissible under Article 15, as understood in the light of the EUCFR.

The cases in today’s judgment
derive from two separate national regimes. The first, concerning Tele2, arose
when – following the DRI judgment –
Tele2 proposed to stop retaining the data specified under Swedish implementing
legislation in relation to the Data Retention Directive. The second arose from
a challenge to the Data
Retention and Investigatory Powers Act 2014 (DRIPA) which had been
enacted to provide a legal basis in the UK for data retention when the domestic
regime implementing the Data Retention Directive fell as a consequence of the
invalidity of that directive. Both sets
of questions referred essentially asked about the impact of the DRI reasoning
on national regimes, and whether Articles 7 and 8 EUCFR constrained the States’
regimes.

The Advocate General handed down
an opinion in July (noted here)
in which he opined that while mass retention of data may be possible, it would
only be so when adequate safeguards were in place. In both instances, the conditions – in
particular those identified in DRI –
were not satisfied.

Judgment

Scope of EU Law

A preliminary question is whether the data
retention, or the access of such data by police and security authorities, falls
within EU law. While the Privacy and
Electronic Communications Directive regulated the behaviour of communications
providers generally, Article 1(3) of that Directive specifies that matters
covered by Titles V and VI of the TEU at that time (e.g. public security,
defence, State security) fall outside the scope of the directive, which the
Court described as relating to “activities of the State” . Further Article
15(1) permits the State to take some measures resulting in the infringement of
the principle of confidentiality found in Art 5(1) which again “concern
activities characteristic of States or State authorities, and are unrelated to
fields in which individuals are active” [para 72]. While there seems to be overlap
between Article 1(3) and Article 15(1), this does not mean that matters
permitted on the basis of Article 15(1) fall outside the scope of the directive
as “otherwise that provision would be deprived of any purpose” [para 73].

In the course of submissions to
the Court, a distinction was made between the retention of data (by the
communications providers) and access to the data (by police and security
services). Accepting this distinction
would allow a line to be drawn between the two, with retention as an activity
of the commercial operator regulated by the Privacy and Electronic
Communications Directive within its scope and the access, as an activity of the
State lying outside it. The Court rejected this analysis and held that both
retention and access lay within the field of the Privacy and Electronic
Communications Directive [para 76]. It argued that Article 5(1) guarantees
confidentiality of communications from the activities of third parties whether
they be private actors or state authorities. Moreover, the effect of the
national legislation is to require the communications providers to give access
to the state authorities which in itself is an act of processing regulated by
the Privacy and Electronic Communications Directive [para 78]. The Court also
noted that the sole purpose of the retention is to be able to give such access.

Interpretation of Article 15(1)

The Court noted that the aim of
the Privacy and Electronic Communications Directive is to ensure a high level
of protection for data protection and privacy. Article 5(1) established the
principle of confidentiality and that “as a general rule, any person other than
the user is prohibited from storing, without the consent of the users concerned,
the traffic data”, subject only to technical necessity and the terms of Article
15(1) (citing Promusicae) [para 85].
This requirement of confidentiality is backed up by the obligations in
Article 6 and 9 specifically dealing with restrictions on the use of traffic
and location data. Moreover, Recital 30 points to the need for data
minimisation in this regard [para 87]. So, while Article 15(1) permits
exceptions, they must be interpreted strictly so that the exception does not
displace the rule; otherwise the rule would be “rendered largely meaningless”
[para 89].

As a result of this general
orientation, the Court held that Member States may only adopt measures for the
purposes listed in the first sentence of Article 15(1) and those measures must
comply with the requirements of the EUCFR.
The Court, citing DRI (at paras 25 and 70), noted that in addition to
Articles 7 and 8 EUCFR, Article 11 EUCFR – protecting freedom of expression –
was also in issue. The Court noted the need for such measures to be necessary
and proportionate and highlighted that Article 15 provided further detail in
the context of communications whilst Recital 11 to the Privacy and Electronic
Communications Directive requires measures to be “strictly proportionate” [para
95].

The Court then considered these
principles in the light of the reference in Tele2
at paras 97 et seq of its judgment. Approving expressly the approach of the
Advocate General on this point, it
underlined that communications “data, taken as a whole, is liable to
allow very precise conclusions to be drawn concerning the private lives of the
persons whose data has been retained” and that such data is no less sensitive
that content [para 99]. The interference in the view of the Court was serious
and far-reaching in relation to Articles 7, 8 and 11. While Article 15 identifies combatting crime
as a legitimate objective, the Court – citing DRI - limited this so that only
the fight against serious crime could be capable of justifying such
intrusion. Even the fight against
terrorism “cannot in itself justify that national legislation providing for the
general and indiscriminate retention of all traffic and location data should be
considered necessary” [para 103]. The
Court stressed that the regime provides for “no differentiation, limitation or
exception according to objectives pursued” [para 105]. The Court did confirm that some measures
would be permissible:

… Article
15(1) of Directive 2002/58, read in the light of Articles 7, 8 and 11 and
Article 52(1) of the Charter, does not prevent a Member State from adopting
legislation permitting, as a preventive measure, the targeted retention of
traffic and location data, for the purpose of fighting serious crime, provided
that the retention of data is limited, with respect to the categories of data
to be retained, the means of communication affected, the persons concerned and
the retention period adopted, to what is strictly necessary. [para 108]

It then set down some relevant
conditions:

Clear and
precise rules “governing the scope and application of such a data retention
measure and imposing minimum safeguards, so that the persons whose data has
been retained have sufficient guarantees of the effective protection of their
personal data against the risk of misuse” [para 109].

while
“conditions may vary according to the nature of the measures taken for the
purposes of prevention, investigation, detection and prosecution of serious
crime, the retention of data must continue nonetheless to meet objective
criteria, that establish a connection between the data to be retained and the
objective pursued” [110].

The Court then emphasised that
there should be objective evidence supporting the public whose data is to be
collected on the basis that it is likely to reveal a link, even an indirect
one, with serious criminal offences, and thereby contribute in one way or
another to fighting serious crime or to preventing a serious risk to public
security. The Court accepted that geographical factors could be one such
ground, on the basis that “that there exists, in one or more geographical
areas, a high risk of preparation for or commission of such offences” [para
111].

Conversely,

…Article 15(1)
of Directive 2002/58, read in the light of Articles 7, 8 and 11 and
Article 52(1) of the Charter, must be interpreted as precluding national
legislation which, for the purpose of fighting crime, provides for the general
and indiscriminate retention of all traffic and location data of all
subscribers and registered users relating to all means of electronic
communication [para 112].

Acceptability of legislation where (1) the measure is not limited to
serious crime; (2) where there is no prior review; and (3) where there is no
requirement that the data stays in the EU.

This next section deals with the
first question referred in the Watson
case, as well as the Tele 2
reference.

As regards the first point, the
answer following the Court’s approach at paragraphs 90 and 102 is clear: only
measures justified by reference to serious crime would be justifiable. As regards the second element, the Court
noted that it is for national law to law conditions of access so as to ensure
that the measure does not exceed what is strictly necessary. The conditions must be clear and legally
binding. The Court argued that since general access could not be considered
strictly necessary, national legislation must set out by reference to objective
criteria the circumstances in which access would be permissible. Referring to the European Court of Human Rights
(ECtHR) judgment in Zakharov,
the Court specified:

access can, as
a general rule, be granted, in relation to the objective of fighting crime,
only to the data of individuals suspected of planning, committing or having
committed a serious crime or of being implicated in one way or another in such
a crime [para 119].

It then distinguished the general
fight against crime from the fight against terrorism to suggest that in the
latter case:

access to the
data of other persons might also be granted where there is objective evidence
from which it can be deduced that that data might, in a specific case, make an
effective contribution to combating such activities [para 119].

The conditions set down must be
respected. The Court therefore held that, save in cases of genuine emergency,
prior review by an independent body must be carried out on the basis of a
reasoned request by the investigating bodies. In making this point, the Court
referred to the ECtHR judgment in Szabó
and Vissy v. Hungary, as well as its own previous ruling in DRI. Furthermore, once there was no
danger to the investigation by so doing, individuals affected should be
notified, so as to those affected people the possibility to exercise their
right to a remedy as specified in Article 15(2) read with Article 22 of the Data
Protection Directive (Directive 95/46).

Article 15(1) permits derogation
only in relation to specified provisions in the directive; it does not permit derogation
with regard to the security obligations contained in Article 4(1) and 4(1a).
the Court noted the quantity of data as well as its sensitivity to suggest that
a high level of security measures would be required on the part of the
electronic communications providers. Following this, the Court then stated:

…, the
national legislation must make provision for the data to be retained within the
European Union and for the irreversible destruction of the data at the end of
the data retention period (see, by analogy, in relation to Directive 2006/24,
the Digital Rights judgment, paragraphs 66 to 68) [para 122].

The Court noted that as a
separate obligation from the approval of access to data, that States should
ensure that independent review of compliance with the required regulatory
framework was carried out by an independent body. In the view of the Court,
this followed from Article 8(3) EUCFR. This is an essential element of
individuals’ ability to make claims in respect of infringements of their data protection
rights, as noted previously in DRI
and Schrems.

The Court then summarised the
outcome of this reasoning, that Article 15 and the EUCFR:

must be interpreted as precluding
national legislation governing the protection and security of traffic and location
data and, in particular, access of the competent national authorities to the
retained data, where the objective pursued by that access, in the context of
fighting crime, is not restricted solely to fighting serious crime, where
access is not subject to prior review by a court or an independent
administrative authority, and where there is no requirement that the data
concerned should be retained within the European Union. [para 125]

Relationship between the EUCFR, EU law and the ECHR

The English Court of Appeal had
referred a question about the impact of the ECHR on the scope of the EUCFR in
the light of Article 52 EUCFR. While the Court declared the question
inadmissible, it –like the Advocate General – took the time to point out that the
ECHR is not part of EU law, so the key issue is the scope of the EUCFR; and in
any event Article 52(3) does not preclude Union law from providing
protection that is more extensive than the ECHR. As a further point, the Court
added that Article 8 EUCFR, which provides a separate right to data protection,
does not have an exact equivalent in the ECHR and that there is therefore a
difference between the two regimes.

Comment

Given the trend of recent case
law, the outcome in this case is not surprising. There are some points that are worth
emphasising.

The first relates to the scope of
EU law, which is a threshold barrier to any claim based on the EUCFR. The Advocate General seemed prepared to
accept a distinction between the retention of data and the access thereto
(although conditions relating to the latter could bear on the proportionality
of the former). The Court took a
different approach and held that the access also fell within the scope of the
Directive/EU law, because the national regime imposed an obligation on the
communications service provider to provide access to the relevant authorities.
Given this was an obligation on the service provider, it fell within the
regulatory schema. This approach thus
avoids the slightly unconvincing reasoning which the Advocate General
adopted. It also possibly enlarges the
scope of EU law.

In general terms, the Court’s
reasoning looks at certain provisions of the Privacy and Electronic
Communications Directive. While the
reasoning is set in that context, it does not mean that the Court’s
interpretation of the requirements deriving from the EUCFR is limited only to
this set of surveillance measures. The
rules of interpretation of particularly Articles 7 and 8 could apply more
generally – perhaps to PNR data (another form of mass surveillance) - and
beyond. It is also worth noting that
according to a leaked
Commission document, it is proposed to extend the scope of the Privacy and
Electronic Communications Directive to other communications service providers
not currently regulated by the directive, but who may be subject to some data
retention requirements already.

Whilst the Court makes the point
that Articles 7 and 8 EUCFR are separate and different, and that data retention
implicates also Article 11 EUCFR, in its analysis of the impact of national
measures providing for retention it does not deal with Articles 7 and 8
separately (contrast DRI where a
limited consideration was given to this). Having flagged Article 11 EUCFR, it
takes that analysis no further. This is
the leaves questions as to the scope of the rights, and particularly how
Article 11 issues play out.

Note that the Court does not
state that data retention itself is impermissible; indeed, it specifies
circumstances when data retention would be acceptable. It challenges the
compatibility of mass data retention with Articles 7 and 8 EUCFR, however, even
in the context of the fight against terrorism.
In this, it is arguable that the Court has taken a tougher stance than
its Advocate General on this point of principle. In this we see a mirror of the approach in DRI, when the Court took a different
approach to its Advocate General. In
that case too, the Advocate General focussed on safeguards and the quality of
law, as has the Advocate General here. For the Court here, differentiation –
between people and between types of offences and threats – based on objective,
evidenced grounds is central to showing that national measures are
proportionate and no more than – in the terms of the directive – strictly
necessary. This seems to go close to disagreeing with the Opinion of the
Advocate General that in DRI, the
Court ‘did not, however, hold that that absence of differentiation meant that
such obligations, in themselves, went beyond what was strictly necessary’
(Opinion, para 199). The Advocate General used this point to argue that DRI did not suggest that mass
surveillance was per se unlawful (see Opinion, para 205). Certainly, in neither
case did the Court expressly hold that mass surveillance was per so unlawful,
so the question still remains. What is clear, however, is that the Court
supports the retention of data following justified suspicion – even perhaps
generalised suspicion – rather than using the analysis of retained data to
justify suspicion.

In its reasoning, the Court did
not –unlike the Advocate General – specifically make a ruling on whether or not
the safeguards set down in DRI, paras
60-68, should be seen as mandatory – in effect creating a 6 point check list.
Nonetheless, it repeatedly cited DRI
approvingly. Within this framework, it highlighted specific aspects – such as
the need for prior approval; the need for security and control over data; a
prohibition on transferring data outside the EU; the need for subjects to be
able to exercise their right to a remedy. Some of these points will be
difficult to reconcile with the current regime in the United Kingdom regarding
communications data.

It did not, however, touch on
acceptable periods for retention (even though it – like its Advocate General –
referred to Zakharov). More
generally, the Court’s analysis – by comparison with that of the Advocate
General – was less detailed and structured, particularly about the meaning of
necessity and proportionality. It did not directly address the points the
Advocate General made about lawfulness, with specific reference to reliance on
codes (an essential feature of the UK arrangements); it did in passing note
that the conditions for access to data should be binding within the domestic
legal system. Is this implicit agreement with the Advocate General on this
point? It certainly agreed with him that the seriousness of the interference
meant that data retention of communications data should be restricted to
‘serious crime’ and not just any crime.

One final issue relates to the
judicial relationship between Strasbourg and Luxembourg. Despite emphasising that the ECHR is not part
of EU law, the Court relies on two recent cases from the ECtHR, perhaps seeking
to emphasis the consistency in this area between the two courts – or perhaps
seeking to put pressure on Strasbourg to hold the line as it faces a number of
state surveillance cases on its own docket, many against the UK. The position
of Strasbourg is significant for the UK. While many assume that the UK will
maintain the GDPR after Brexit in the interests of ensuring equivalence, it
could be that the EUCFR will no longer be applicable in the UK post-Brexit. For
UK citizens, the ECHR then is the only route to challenge state intrusion into
privacy. For those in the EU, data transfers to the UK post-Brexit could
be challenged on the basis that the UK’s law is not sufficiently adequate
compared to EU standards. Today’s ruling – and the UK’s response to it, if any –
could be a significant element in arguing that issue.

Tuesday, 20 December 2016

Today, the Scottish government published
its long-awaited discussion
paper on ‘Scotland’s Place in Europe’. Although, as the paper points out,
that government supports both EU membership and Scottish independence, the
paper focusses on what should happen in the event of Brexit with Scotland remaining
part of the UK. It would therefore be quite dishonest for anyone to dismiss the
paper as simply ‘rejecting the referendum result’ (either the Brexit or the Scottish independence referendum result) or
as ‘banging on about independence’.

So what does the paper propose?
Essentially it discusses two options: a) a UK-wide approach to Brexit that
would address the concerns of Scottish voters (among others); and b), failing
that, a distinct approach for Scotland. It also makes c) the argument for
further devolution of powers within the UK in light of the Brexit process. I’ll
address mainly points a) and b), although there’s a necessary link between b)
and c) – ie a distinct approach for Scotland/EU relations post-Brexit would more
obviously require further devolution. Some of this ground is covered in a previous
blog post, but it makes sense to revisit the issues in light of the new
paper.

UK-wide response to Brexit

The paper primarily argues that
the UK should stay in the EU’s single market as extended to non-EU countries
like Norway and Iceland, in the form of the European Economic Area (EEA) treaty. It also argues that the
UK should remain inside the EU’s customs
union, which governs EU trade relations with non-EU states. As the paper
rightly points out (at para 104), these are two separate issues – it would be
possible to join one but not the other. It’s sometimes argues that being part
of the single market entails being part of the customs union, but this is false,
as the case of Norway (in the single market, but not the customs union) and
Turkey (in the customs union, but not the single market) indicate. Although to
date no non-EU state is part of both the single market and the customs union,
there is no legal reason this cannot take place.

While it’s sometimes argued that
staying in the single market is the same as staying in the EU, and would
therefore be a rejection of the referendum result, this is false. As already
noted, the EEA agreement doesn’t include the customs union, so the UK would be
free to reach trade agreements with non-EU countries. It also does not extend
to issues such as fisheries and agriculture (as the Scottish government paper
points out), as well as EU foreign and defence policy, tax, and justice and
home affairs issues. Norway and Iceland have agreements with the EU on some of
these issues, such as participation in the Schengen open borders deal, but
these are separate from EEA membership.

Today’s paper tackles a number of
the objections to EEA membership. It correctly notes (at para 100) that EEA
membership does not mean being subject to the jurisdiction of the European
Court of Justice (ECJ), which is a ‘red line’ for the UK government. However,
it does mean being subject to the jurisdiction of an EFTA Court, which usually
follows the ECJ where a case concerns an issue within the scope of the EEA
treaty. It should be remembered, though, that some EFTA Court judgments (those
following references from national courts) are not binding, unlike EU court
rulings.

As regards the UK’s budget contribution
to the EU, it points out correctly (at para 103) that contributions by non-EU
EEA members are calculated differently (they don’t go straight to the EU
budget, for instance), and may end up being less for the UK than at present. On
the issue of immigration from the EU, the report fails to mention (at para 101)
that a safeguard clause could be used to limit EU citizens coming to the UK.
The Scottish government would have no interest in using this clause, but it
could be invoked on a regional basis – for instance allowing screening of job
applications from EU migrant workers at the employer level in England and
Wales. While the report notes that non-EU EEA countries are consulted on new EU
laws within the scope of the EEA, it doesn’t mention the possibility of non-EU EEA
states rejecting the extension of those new laws to them.

Some things could be clearer in the
report. There’s a list of areas besides trade where it advocates UK retains a
strong relationship with the EU, but it’s not always clearly spelled out
whether these are part of the EEA or not. For instance, private law (para 78),
discrimination law besides sex discrimination law (para 79), EU funding to
Scotland (para 89), research funding (para 92), refugee issues (para 94) and criminal law (para 91)
are outside the scope of the EEA, and so would need to be the subject of separate
deals between the UK and the EU. Conversely, consumer law (para 79) and
employment law (para 81) are within it. The report does make clear that many –
though not all – EU environmental laws are inside the scope of the EEA (see para
93).

In particular, while the report
advocates an interim arrangement for the UK leaving the EU, it does not suggest
any details of what that might entail – and does not discuss the possibility,
favoured by some ‘liberal Leavers’, that the UK could stay in the EEA only on
an interim basis, pending negotiation of a comprehensive trade agreement.

Scotland-only
approach

The report correctly notes that
there is already geographical asymmetry (ie different application of the law in
different parts of a country), not only in the application of EU law to parts
of Member States and in the application of the EEA, but also in the UK’s planned
response to Brexit. It proposes to follow the same approach to Scotland, which
would participate in the EEA either via ‘sponsorship’ of the UK or directly
(while still part of the UK).

This raises issues concerning the
movement of goods or people between Scotland and the rest of the UK, if the two
have different arrangements as regards relations with the EU. Some of these
issues are discussed in detail in the paper, but it largely relies on arguing
that whatever solutions are found for the Northern Ireland/Irish Republic
border (as promised by the UK government) can be applied by analogy to
relations between Scotland and the remaining UK.

Comments

The prospect of the UK staying in
the EEA (or a comparable system) is legally much easier to arrange and
negotiate than any Scotland-only approach to Brexit. However, as the report
notes, EEA membership seems unlikely for political reasons, since the UK government
seems unenthusiastic about any obligations regarding the free movement of
people. On this point the report could have done more to address these concerns
by discussing the possible use of the EEA safeguard clause. It could also at
least have advocated participation in the EEA as an interim measure, given that
the UK government in recent weeks has appeared increasingly open to the idea of
some interim arrangement following Brexit in principle.

Equally – although the report
does not discuss this – a Scotland-only approach has political problems, as
neither the UK government nor the remaining EU seem willing to discuss the
idea.

However, the Scottish government
might in theory have more success with its proposals relating to devolution. As
it correctly notes, devolution issues are bound to arise once the Westminster
Parliament examines the planned ‘Great
Repeal Bill’ next year – since the conversion of EU law to UK law
necessarily raises the question of how this process relates to the powers of
the UK’s devolved governments. And on this issue, there is possibly more broad political
support: the paper refers in particular to the interest of the Labour party in
rethinking devolution, whereas that party does not seem interested in EEA
membership for the whole UK and has not (to my knowledge) expressed any view on
Scotland-only solutions for Brexit.

In this context, there is the
prospect of a coalition of opposition MPs and rebel Conservatives with a number
of common (and linked) concerns about the future Bill: ruling out lower
standards for environment and employment law, addressing concerns of the devolved
legislatures, and limiting the executive’s power to amend Acts of Parliament to
reduce standards.

Beyond that is the specifically
Scottish political context. If the Scottish government’s proposals on all three
issues are rejected by the UK government – given the willingness of today’s
report to accept both Brexit and Scotland remaining in the UK – this might be
the occasion to argue that a further referendum on Scottish independence is justified,
although other factors (such as opinion polling) will also play a big role in
that decision.

What’s the future for human
rights law in the UK after Brexit? The starting point in the debate is what
happens to the Human Rights Act– the subject of Professor Gearty’s new book On Fantasy Island. It has a thorough grasp of detail, but also makes
the case for the Act in its social, political and historical context. It has a
command of the whole subject, but also demonstrates the importance of human
rights cases to the individuals concerned.

In particular, On Fantasy Island demolishes the myth of
a glorious past for human rights as part of the common law (see also his blog
post on this theme). As Professor Gearty notes, it’s true that the
Salvation Army had the right to march joylessly to demand that people endure grinding
poverty with tedious sobriety. But many others were unsuccessful asserting such
rights – or were subject to wrongful convictions which sometimes either turned into
wrongful executions or would have done so if the death penalty were still applied.

The book also punctures the
misunderstandings of the Human Rights Act
(HRA) that portray it as entrenching excessive judicial power constraining
elected politicians – pointing out that the courts (in the UK, or the European
Court of Human Rights) cannot overturn Acts of Parliament on human rights
grounds.

Indeed, in light of this conscious
compromise between parliamentary sovereignty and human rights protection – comparable
to that in ‘poster child’ common law Commonwealth states Canada and New Zealand
– coupled with British involvement in drawing up the ECHR, it could be said that
the UK’s human rights system is already so ‘red, white and blue’ that even
Pavlov’s bulldogs should salivate at the mention of its name.

Of course, the public perception
of the UK’s human rights system does not see it as closely linked to our legal heritage,
despite several provisions of the ECHR and HRA that resemble Magna Carta. I’ll
return to that problem below.

The Brexit context

There’s a substantive dimension
to the links between Brexit and the Human
Rights Act, as well as a broader political and advocacy dimension. Substantively,
human rights are protected as a matter of EU law whenever the issue in the
particular case is linked to EU law, for example in areas such as data
protection, discrimination and asylum law. In that case, the EU Charter of Rights
applies – with rights corresponding to the ECHR as well as some rights drawn
from other sources. There’s also a stronger system for protecting those rights:
UK courts at any level can set aside an Act of Parliament if necessary to that
end, as seen in Vidal-Hall
and Benkharbouche.

After Brexit, such protection
will be governed by the detailed rules in the planned ‘Great Repeal Act’, which
will convert EU law into UK law until individual measures are amended or
repealed. This raises issues similar to the ‘post-HRA’ scenario discussed in On Fantasy Island. In particular: will
CJEU case law still apply? Will the Charter of Rights still apply? What will
the legal effect of the Act be, as a matter of domestic law? Will it be
considered a ‘constitutional statute’, with a form of privileged status
compared to other Acts of Parliament? How easy will be for the executive to
repeal ex-EU laws (an issue discussed further here).

As for the political dimension,
there is some overlap between the debate over the Human Rights Act and Brexit, but some differences too. Most
notably, the dynamics of a referendum do not apply to the debate over the HRA.

And yet, the debate over HRA repeal
will take place in Brexit Britain – a country which, to update Dean Acheson’s
famous phrase, has now lost its post-war role but cannot refound its empire. Frustrated
by this unavoidable fact, it is unlikely the critics of all things ‘European’ will
feel full after Brexit. The Human Rights Act looks likely to be their next snack.

There is, however, a theoretical
possibility – canvassed in Professor Gearty’s book – that a new British Bill of
Rights or somesuch could be fashioned, while avoiding the weak points in the
common law system for the protection of human rights. Frankly, while this might
(with perfect hindsight) have been the best way to establish ‘constitutional
patriotism’ for the Human Rights Act
from the outset, this seems unlikely to happen in the current political
context.

First of all, leaked
government plans indicated the intention was to remove effective remedies while
handing the constitutional equivalent of a ‘bung’ to tabloid newspaper editors.

More broadly, the level of public
debate since the referendum vote has been diabolically poor. One side basically
repeats ‘You lost. Shut up!’ while the other repeats ‘We won’t. You lied!’ ad
infinitum. This ‘debate’ has been punctuated by political murder, escalating
threats of violence, and a large part of government and media opinion showing
visceral contempt for the rule of law and parliamentary democracy.

Towards a new defence of the Human Rights Act

So there’s a strong case for
retaining the Human Rights Act; but if
we want to retain it, we have to defend it. It’s important to think of the best
way to defend it, however. As lawyers or law professors we have to teach and
practice human rights law technically – to understand deadlines
for filing better than the Home Secretary, for instance. I’ve been called ‘forensic’
so many times that I should probably have my own CSI spin-off.

Moreover, some of the argument in
defence of the HRA is defensive. As I pointed out already, Professor Gearty’s
book rightly argues that the Act doesn’t allow the Courts to overrule
Parliament. But reading arguments like these reminds me of the EU referendum
arguments that the UK can overrule major changes to the EU, or that ‘unelected
bureaucrats’ do not make all EU laws. Perfectly accurate arguments – but they
did not win the day.

It’s also necessary to focus on a
more positive case for the Act (including the ECHR more broadly). Some
claimants are undeniably hard to love. But human rights law also helped a gay
man kicked out of his home because the love of his life died. It protected the
elderly in care homes left in their own filth. It safeguards children beaten so
badly by their parents that they need to visit the hospital. It offers justice
to grieving family members trying to find out why their loved one died. And it
exposed wrongdoing leading to the tragic fate of many children whose mothers
took the thalidomide drug.

This is the rational but passionate, reasoned yet humane, case that
we have to make for the preservation of the Act.